Legal Conceptualisations of the Freight Forwarder: Some comparative reflections on the disunified law of forwarding

Unfortunately, no consensus exists concerning the legal conceptualisation of the economic actor known as the freight forwarder (hereafter: forwarder) or the legal regime applicable to him. In part, this is a consequence of the wide variety of services offered and the various legal roles assumed by this quintessential service provider, which complicates the effort of fitting the square peg of the forwarding contract into one or more of the round holes of existing general legal concepts such as agency, commission, services, carriage, bailment and so on. Also the co-existence under a single forwar¬ding contract of multiple obligations of various nature in relation to which the forwarder’s role may alternate from agent to principal and back, adds a lot to the complexity of the legal position of the forwarder. 4. Furthermore, the dividing line between the (often) mandatory law of transport and forwarding law, where parties (in principle) enjoy freedom of contract, has become blurred. Depending upon the legal qualification of the forwarding contract and the applicable law, the liability regime of the forwarder may vary considerably. As a result, there is much divergence, not only between common law and civil law, but also between the various national laws within these legal traditions, concerning the legal notion of forwarder. As a result of this discord, efforts to unify or harmonize forwarding law have failed, leaving the matter to be resolved by courts and arbitrators on the basis of the applicable national laws and the general trading conditions drawn up (often) by national forwarders associations. However, as some authors have observed already, in fact the features of the various forwarder concepts have more in common, than may appear at first. The aim of this contribution is to explore the legal nature of the various roles assumed by the forwarder under a forwarding contract and the implications this has for the applicable legal regimes and his freedom (if any) to invoke (statutory) exclusions or limitations of liability provided by international conventions, the applicable domestic law or by his general trading conditions of business. In §3 an overview will be given of the various roles which a forwarder may play or even combine under a forwarding contract, and of legal conceptualisations and liability regimes of the forwarder in these different roles under German, French, English and Dutch law. This will give rise in to some comparative and critical reflections about previous attempts to unify and harmonize freight forwarding law and domestic attempts to regulate the forwarding contract.